Constitution Is on Life-Support
by Gary North: Information
Costs and Hedonics
a republic, not a democracy. Let's keep it that way!"
When I was
a teenager, that was a popular saying in conservative circles. Conservative
circles in 1958 were very few and very far between. The movement
lacked slogans. Every fringe movement needs a few slogans. Slogans
are like secret handshakes in a club. They identify one's true colors
to those in the know.
was misleading then, and it is misleading today.
an oligarchy of lawyers and the businessmen who hire them.
In no other
nation do five lawyers determine what is lawful and what is not.
This supreme authority of five people is both a symbol and the legal
foundation of the political system that rules 310 million Americans.
Yet we are so used to it that we give it no thought. We assume that
this is normative: "the way things are 'sposed to be." Yet it is
neither normative nor Constitutional. It is merely traditional.
On July 9,
1986, CBS television ran a show titled The Burger Years.
It was an interview with the Chief Justice of the Supreme Court,
Warren Burger. It was the most important interview ever granted
by a sitting Chief Justice. It was conducted by the former public
relations spokesman for Lyndon Johnson, Bill Moyers, who by 1986
had become a respected media figure, a Voice of Disinterested Authority
– the only Establishment survivor of the sinking of the U.S.S. Lyndon.
In that interview, this exchange occurred.
BURGER: Constitutional cases – constitutional jurisprudence is
open to the Court to change its position in view of changing conditions.
And it has done so.
what does it take for the Court to reverse itself?
BURGER: Five votes.
This may sound
cynical. It was not cynical. It was a forthright statement of judicial
principle. Five people decide the meaning and applicability of the
foundational document of American civil government. At any time,
one of these five can change his or her mind, or be replaced on
the court by someone who does not share this view. Then the Constitution
is reinterpreted, and whatever was lawful before becomes unlawful,
or vice versa.
When the court
is divided 5 to 4, one vote decides what is lawful: the swing vote.
This is called
republican government if you are a conservative Republican, and
democratic government if you are a liberal Democrat. Every movement
needs a few defining slogans. The more widely they are believed,
the less accurate they are.
The House passed
a bill repealing Obamacare, as expected. The
Senate voted it down, 51 to 47, as expected.
Each side is
jockeying for position in preparation for the elections of 2012.
They know that. The press knows that.
of Maryland spoke for the extreme Left of the Democrats in the Senate,
as she has for a quarter century. She was elected to the Senate
in 1986, two months after Burger retired and four months after he
gave his interview. Here is her assessment of the Republicans' strategy.
She identified it as "one more hollow, symbolic, pander-to-the-masses
Who are the
masses? Voters. Lots and lots of voters. For the moment, that is
a threat to the Democrats in the Senate. They have less than two
years to change the minds of the masses.
Yet all this
may turn out to be a sideshow. The real rulers of America have begun
to choose sides. Two Federal judges have said the law is unconstitutional.
Two have said that it is constitutional.
challenge to the law was brought by 26 states. The government's
attorneys argued that states do not have legal standing to bring
the case before a Federal court. It was a weak defense.
divided: House vs. Senate. States are divided: 26 to (presumably)
24. The Federal district courts are divided: 2 to 2.
So, we are
headed for a showdown in the halls of the United States Supreme
Court. A 5 to 4 decision is a real possibility. If the Court rules
that the section of the law that has been declared unconstitutional
by the judge in Florida – the section on the mandatory purchase
of health insurance – then the whole law is gutted. It loses its
teeth. At that point, it's dead for two years. Then the outcome
will be decided by Congress in 2013, when Republicans may have the
Senate and the Presidency.
In a 5 to 4
decision, it's one man, one vote: the deciding vote.
If it is declared
constitutional, and Ms. Kagan votes in favor, then a lawyer who
served as an Obama administration lawyer is the swing vote. If she
recuses herself, as
the Wall Street Journal says she should, then a 4 to
4 decision will create havoc. In two Federal districts, parts of
the law cannot be enforced. There may be more district courts invalidating
the section on mandatory purchase, if more cases are introduced,
which looks certain.
government? Hardly. Democratic government? Hardly. Judicial oligarchy?
NOT SUPPOSED TO BE
States Constitution is a short document. Its language can be understood
by a careful reader. Its grammar is heavy on capital letters, but
III, Section 2, on the powers of the Federal judiciary, we read
In all Cases
affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall
have original Jurisdiction. In all the other Cases before mentioned,
the supreme Court shall have appellate Jurisdiction, both as to
Law and Fact, with such Exceptions, and under such Regulations
as the Congress shall make.
Court has original jurisdiction in only three areas, two of which
are arcane. In all other areas, its jurisdiction is delegated by
Does this mean
that Congress – without the consent of the President – can remove
the Court's jurisdiction? Yes. Are there any limits on this? Yes.
"In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be Party." Any others?
Court has original jurisdiction in the Obamacare case in the Florida
District Court. States brought suit. Congress cannot touch that
authority. But such cases are rare.
Then why doesn't
Congress get its way when the Court overturns a law? Because of
tradition. In the Republican Party-dominated period of Reconstruction,
Congress did remove the Court's jurisdiction over a case involving
the military rule over the South. The case was Ex parte McCardle
(1869). Wikipedia's account is accurate.
the Civil War Reconstruction, William McCardle, a newspaper publisher
and professional soldier in the Confederate Army reaching the rank
of sergeant, published some "incendiary" articles which advocated
opposition to the Reconstruction laws enacted by the Republican
Congress. He was jailed by a military commander under the Military
Reconstruction Act of 1867, a law passed by the United States Congress.
Mr. McCardle invoked habeas corpus in the Circuit Court of the Southern
District of Mississippi. The judge sent him back into custody, finding
the military actions legal under Congress's law. He appealed to
the Supreme Court under the Habeas Corpus Act of 1867, which granted
appellate jurisdiction to the Supreme Court to review denial of
habeas petitions. After the case was argued but before an opinion
was delivered, Congress suspended the Supreme Court's jurisdiction
over the case, exercising the powers granted to Congress under Article
III, section 2 of the Constitution.
If ever there
has been a Constitutional case that has not made it into the American
history textbooks, it is this one. This case makes it clear that
Congress is in charge. If Congress wants to keep the Court's nose
out of Congressional business, it can tell the Court to fly the
refuses to do this. Congress passes laws that are clearly unconstitutional.
Members justify this by means of this excuse: "If it's unconstitutional,
the Supreme Court can say so." Congress has delegated to the Court
original jurisdiction over everything: county laws, state laws,
and Federal laws. Only in the case of treaties, over which the House
has no jurisdiction, does the Court keep its hands off laws.
How did this
come about? How was the judicial sovereignty of Congress removed
completely by the Supreme Court? Because of the lawyers' guild.
The law schools teach the doctrine of judicial sovereignty. This
has mandated the teaching of the Court's original jurisdiction as
unbounded. This extends to nine unelected representatives of the
legal guild the power to overrule the masses, meaning a majority
of the voters.
says that the Congress has original jurisdiction. The lawyers say
otherwise. The textbooks do not raise the issue. This includes textbooks
in Constitutional law.
Court has arrogated to itself the right to interpret the Constitution.
For about a century, the Supreme Court has operationally ignored
the Constitution's clear teaching regarding original jurisdiction.
The Constitution has been allowed to die, section by section, according
to "changing conditions," to quote Chief Justice Burger. The Court
cuts off life support to those sections that interfere with the
opinion of five members at any given time.
is called a "living document," meaning an evolving document, meaning
a document that five people on the Supreme Court get to make up
as they go along, which they do. This living document is on life-support.
It exists mainly for the convenience of the lawyers' guild. They
know how to make it pay.
For as long
as I can remember, the Republican faithful have told conservatives
to vote for the Party's middle-of-the-roader Presidential candidate.
Here is the fall-back argument: "He will get to appoint Supreme
Court justices." This argument recognizes the intensely political
nature of the Supreme Court. The Court interferes with everything,
including politics. But it is not limited to politics. It is not
limited at all, according to the Court.
The Court has
claimed original jurisdiction over every area of American life.
It has therefore declared sovereignty. Because there are no bounds
to this sovereignty operationally, this is absolute sovereignty.
this same claim is made by Parliament. The courts cannot override
Parliament. Neither can the king. The result is pretty much what
it has been in the United States: the extension of government power.
I am not saying
that the Supreme Court has been at odds with the general opinions
of voters most of the time. As the humorous literary character Mr.
Dooley said over a century ago, "No matter whether the country follows
the flag or not, the Supreme Court follows the election returns."
But the arrangement by which the voters exercise a final say over
the government is not the textbook version. The voters extend their
control through the lawyers' guild, which filters it – spins it,
There was a
reason why Puritan Massachusetts made it illegal to collect a fee
for representing someone else in court. In a classic paragraph by
Daniel Wait Howe's The
Puritan Republic in New England (1899), we read:
the profession had become almost extinct during the commonwealth
period appears from a letter written by Edward Randolph to Mr. Povey
in 1687, wherein he says: "I have wrote you of the want we have
of two or three honest attorneys (if any such thing in nature).
We have but two, one is West's creature, come with him from New
York, and drives all before him. He also takes extravagant fees,
and for want of more, the country can not avoid coming to him, so
that we had better be quite without them than not to have more."
In 1663, the
legislature, called (then as now) the General Court, made it illegal
for a lawyer serving in an inferior court to serve in the General
Court. In 1673, it became legal to represent others for a fee, but
fees were regulated by the government. There were no lawyers who
earned a full-time living. Yet by 1700, merchants and lawyers had
replaced ministers as the leaders of Massachusetts politics. The
lawyers triumphed ever after. Why? Because Americans are a litigious
It was not
just Massachusetts. Virginia expelled all lawyers from the colony
Decade by decade,
generation by generation, lawyers have become the interpreters of
the American way of life. Voters cannot conceive of a legal system
not dominated by lawyers. The goal of every self-conscious group
is to control the law schools. Harvard Law School, Yale Law School,
and a handful of others have provided the political leadership of
the country for well over a century. They set the limits of political
I have waited
ever since 1962 for a conservative or a libertarian to write a textbook
on the history of American Constitutional law. It has not appeared.
Similarly, I have waited since 1958 for a detailed, documented study
of Roosevelt's revolutionary New Deal and his wartime policies,
which covers both domestic policy and foreign affairs. Until these
two books appear, the conservative movement will remain a fringe
only one major political defeat as President, when he attempted
to "pack" the Supreme Court in 1938. The very word "pack" indicates
that he lost. Congress rebelled. The great irony was this: Roosevelt
clearly had Constitutional grounds for doing this. There is no set
number of justices. But he transgressed the legal guild's tradition,
and he was thwarted. That tradition, not the Constitution, is sovereign.
The Court after
1938 started handing down decisions in favor of Roosevelt's New
Deal, especially after his election to a third term in 1940. The
Supreme Court follows the election returns.
There are conservative
voters who still believe that taking control of Congress and the
Presidency will lead to a transformation of the nation. This places
far too much trust in national politics.
system is rigged by lawyers. It always has been. Until the major
law schools adopt the principles of limited civil government and
the strict construction of the Constitution – itself a lawyers'
document that was illegally passed, according to the original Constitution
(the Articles of Confederation) – the conservative movement will
remain on the sidelines.
will not exercise its Constitutional authority, we should not expect
deliverance by Congress. Congress is not in charge. The Constitution
is sovereign in name only.
Constitution begins with a declaration of sovereignty, point one
of the covenant model: "We the People of the United States . . .
do ordain and establish this Constitution for the United States
of America." This Preamble could not be clearer. The Framers presented
the document for ratification in such a form that the entire population
acting corporately through the states would gain formal credit for
What is the
meaning of "we the people"? I asked that question of Warren Burger.
He had written that these are the document's most important words.
On September 26, 1988, he wrote his reply. It was a six-word reply:
"They are the key words conceptually." He underlined conceptually.
words mean nothing. For propaganda purposes, they mean that the
rubes will sit there and accept what five people tell them they
may or may not legally do.
North [send him mail]
is the author of Mises
on Money. Visit http://www.garynorth.com.
He is also the author of a free 20-volume series, An
Economic Commentary on the Bible.
2011 Gary North
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